Chief Justice Warren E. Burger: We will hear arguments first this morning in number 76-5856 Holloway against Arkansas.

Mr. Hall you may proceed whenever you are ready.

Mr. Harold L. Hall: Mr. Chief Justice and May it please the Court.

There is one question presented, one point of law presented to the Court for consideration today and that is whether the petitioners were denied effective assistance of counsel, but although the trial court appointing a public defender to represent three defendants in the same trial over their objections.

Prior to the trial a motion for a severance and separate counsel was filed by the public defender with the Court and it was overruled.

Before this third trial on the day of the trial, counsel for the petitioners made over a motion which was denied.

The trial started and during the direct examination of one of the petitioners, another petitioner who is there at the counsel table objected to a question to which the Court overruled and said your attorney will answer any, make any objection on your behalf.

At that time out, the public defender was asking the witness a question which the witness also happens to be a codefendant and he was unable to make an objection on behalf of the petitioner Holloway because he was also his attorney and attorney for the witness.

Chief Justice Warren E. Burger: Was there any difference in the general nature of the defense as between and among these defendants?

Mr. Harold L. Hall: Well, sir prior to going to the Court there was, but then when the Court said you will represent all three, you cannot cross-examine your own witness which happens to be a defendant.

I had to change my plans, and I could not cross-examine my own witness to bring out incriminating evidence against he or the other two codefendants.

Chief Justice Warren E. Burger: Did you make any proffer that the witness was inherently a hostile witness and asked for the cross-examination under the hostile witness rule?

Mr. Harold L. Hall: No, sir because he was my client.

Chief Justice Warren E. Burger: No.

Mr. Harold L. Hall: All three.

Chief Justice Warren E. Burger: That would not necessarily bar that proffer --

Mr. Harold L. Hall: Yes.

Chief Justice Warren E. Burger: As an explanation of why one witness might be hostile with respect to another?

Mr. Harold L. Hall: But I have been admonished by the Court not to cross-examine my own witness, I could not cross examine, these are exact words, well, you have no right to cross examine your own witness then he told me to proceed like you told me to.

Chief Justice Warren E. Burger: What was their defense that they had --

Mr. Harold L. Hall: They had alibi defense.

They testified over my objections, I mean, over my advice and denied being there, which I could not state to the Court what they have told me in confidence.

In discussing the case with them, I talked to each one individually as they requested and so anything one of them told me was out of the hearing of the other two.

Unknown Speaker: Mr. Hall, do I understand that the respective alibi defenses were not incompatible, however?

Mr. Harold L. Hall: No sir.

Unknown Speaker: In Arkansas is a codefendant then permitted to cross-examination of another defendant, when he takes the stand?

Mr. Harold L. Hall: If they have separate counsel, yes sir.

This is the first instance that come across where I have been appointed to represent three over my objections where there was a conflict of interest in my opinion.

Unknown Speaker: But it is clear that if they have separate counsel they may (Voice Overlap)

Mr. Harold L. Hall: They can, yes sir.

The Court told me to proceed as he had told me to, we went on, and I was abiding by the ABA standards that a lawyer should decline to act for more than one defendant if there is a possible conflict, but on this case a public defender, we had to go ahead and take the three and did not make a motion to the Court and at no time did the Court ever asked me to eliminate, I mean, to find what the conflict of interest was.

Unknown Speaker: Mr. Hall do you want the per se rule or you are asking for that one counsel may not represent more than one codefendant?

Mr. Harold L. Hall: Well, sir if there is no conflict, at the attorney's investigation there is no conflict I have represented more than one since that time.

Unknown Speaker: What happens, how many public defenders officers do you have in Little Rock, just one?

Mr. Harold L. Hall: I just have one and three others to handle the caseload for the full district, two counties.

Unknown Speaker: Does that mean that if you represented one of these codefendants that your office could not represent any of the others?

Mr. Harold L. Hall: Well, there are only being three public defenders in the office or five if they are all mingled together, we have one secretary to help with it and that makes it hard to keep one's file privilege from the other.

Unknown Speaker: So it would mean that the Court would have to go outside your office to appoint for the codefendants?

Mr. Harold L. Hall: Yes sir.

Unknown Speaker: Go back to the older system?

Mr. Harold L. Hall: Yes sir.

Justice Byron R. White: But you do I take it insist that if the attorney requests it that he should be relieved of a joint representation?

Mr. Harold L. Hall: Yes, sir I think for sure.

Justice Byron R. White: That is, I mean, to that extent it is per se rule you are submitting?

Mr. Harold L. Hall: Yes, sir.

Chief Justice Warren E. Burger: Should it be just a request or a request accompanied by a representation such as you did make here that there were inherent conflicts that would impair the defense of each?

Mr. Harold L. Hall: Your Honor I filed a written motion and two oral motions and each one of the defenders at the trial got up and requested a separate counsel and a severance.

Justice Harry A. Blackmun: But, what the Chief Justice asked whether you must also say that there is a conflict in your opinion?

Mr. Harold L. Hall: Yes, sir, there was and I --

Justice Harry A. Blackmun: And must you then go on and detail what the conflict might be?

Mr. Harold L. Hall: Well, the Court did not ask me and told me to proceed on, like he had told me not to cross-examine my own witness, he did not ask me what the --

Justice Harry A. Blackmun: Well, I know, but in this case what do you think the rule should be?

You should have to reveal what the conflict is or that just a representation, is not it?

Mr. Harold L. Hall: No sir, I think it should be one separate attorney for each defendant because if the attorney the reveals what his clients told him in confidence to Court or anyone then he loses his respect from his client and freedom where he would go in and converse with him further in the matter.

Chief Justice Warren E. Burger: Would you have to go that far in this case pursuing Mr. Justice Blackmun's inquiry.

Is it not sufficient for you to persuade the court that in these circumstances it was an abuse of discretion after you had represented that a conflict existed.

You said that you have since then represented codefendants?

Mr. Harold L. Hall: Yes sir, where there has been no conflict of interest to each one and that is for --

Chief Justice Warren E. Burger: And was not that enough, if you show a claim and abuse of discretion by the trial judge?

Mr. Harold L. Hall: And this when he had his mind made up Your Honor with what was going on and I had to go as the Court said or be in contempt.

Unknown Speaker: Mr. Hall are funds available in Arkansas for the retention of outside counsel in a situation like this?

Mr. Harold L. Hall: Your Honor, at the present time we are paid a fee on each case which we try or appointed on which goes into a fund.

When the fund builds up they pay our salaries.

That fee is $ 350 maximum, with a $100 for investigation, if we use investigators.

If they wish to appoint three different attorneys they would not go to county, but it would go to counsels.

They pay us (Inaudible) fee we still get one fee.

They would if they had an additional counsel to be paid more, but we are paid only per case basis and it goes into the fund, then they pay your salaries, and all expenses that are there.

Unknown Speaker: And that fund would be available to retain outside counsels?

Mr. Harold L. Hall: No sir where the order --

Unknown Speaker: Yes, if your motion had been granted, where would the lawyers come from and who would pay them?

Mr. Harold L. Hall: They would come out of county general fund.

Unknown Speaker: General fund.

Mr. Harold L. Hall: Which they have a certain amount set aside per year.

Unknown Speaker: Well, that answers my question.

Mr. Harold L. Hall: Yes, sir.

Justice William H. Rehnquist: Mr. Hall, as I read the State Supreme Court's opinion in this case, they found there was no prejudice resulting from the failure to appoint separate counsel.

Do you attack that finding or do you say that notwithstanding that finding you are entitled to a reversal here?

Mr. Harold L. Hall: I could not show within the prejudice without revealing the information that my clients had told me and I could not tell the Court that or to bring it out, that they have told me contrary to what they testified on the stand.

Justice William H. Rehnquist: How about telling the Supreme Court of Arkansas?

Mr. Harold L. Hall: Well, sir there was three men who come into this cafe.

It had closed, they went into back door, one downstairs, one man stayed at the top of the stairs, two of the men went to the room where they were counting the money received for the day, and there they robbed them and two other men raped two other girls.

Now, there was no testimony that the third man raped them.

Just two of them, each one has raped twice and they testified by the same man, I mean same two.

Now, there is a question as to who was at the top of stairs, and who was involved in the rapes downstairs.

I had that information and I could not cross-examine --

Justice William H. Rehnquist: But did you tell what you have said in response to my question just now, did you tell that to make that point in the Supreme Court of Arkansas when you were arguing?

Mr. Harold L. Hall: No sir because it was not in the record.

I could not bring out from the witness as they testified.

Justice William H. Rehnquist: Why can you bring it out to us in a way that you cannot --?

Mr. Harold L. Hall: But I have not mentioned any names.

Justice William H. Rehnquist: Well, but could not you have done the same thing in the (Voice Overlap).

Mr. Harold L. Hall: I was just answering your question sir, where you asked me, now the judges did not ask for oral argument in Arkansas Supreme Court.

Justice William H. Rehnquist: This was not orally argued?

Mr. Harold L. Hall: No, sir and they did not ask me the point and they asked me I would have explained like I had here.

You are presenting a constitutional issue here and that means that we have to evolve some standards.

I take it in your colloquy with the other justices that you are really asking for a per se rule.

Am I not correct this Court has never gone that far before, we certainly did not do it in the Glasser case?

Mr. Harold L. Hall: No, sir.

Unknown Speaker: But you feel this is the only way to handle it here?

Mr. Harold L. Hall: Yes sir.

Unknown Speaker: But only if the attorney demands a separate representation, representing that there is a conflict?

Mr. Harold L. Hall: Yes, sir.

Justice Thurgood Marshall: And where the judge is --

Unknown Speaker: Is it enough on his demand.

Mr. Harold L. Hall: Sir?

Unknown Speaker: Is it enough fund if he already demands it, or do you think --?

Mr. Harold L. Hall: The attorney and the defendants also.

Unknown Speaker: Yes, but do you think you should come up with something more than an allegation of conflict?

Mr. Harold L. Hall: Well, if there was proof of -- I mean, you have to put on the confidential information of the clients, I do not think it should be to the trial judge.

Justice Thurgood Marshall: Well, in this case the trial judge did not ask for it, did he?

Mr. Harold L. Hall: Did not ask for it and --

Justice Thurgood Marshall: He did not ask for anything?

Mr. Harold L. Hall: No sir --

Justice Thurgood Marshall: And if he had asked what you would have told him, what you told us?

Mr. Harold L. Hall: Yes, sir.

Unknown Speaker: But you see on coming back to standards, is it enough merely to make the request or must the request be accompanied by at least the proffer as the Chief was indicating and I would be interested in where you think the perimeters of this constitutional issue should be drawn?

Mr. Harold L. Hall: Well if there is a parole for proof it would have to be kept or the defendant's communication, his privilege communication to his attorney would be kept mute and it is hard for different trial judges, it is hard to one of them will discuss the matter and let something slip where normally he would not.

Unknown Speaker: Well, one way out would be this in camera here in before the judge and I take it, you do not go for that?

Mr. Harold L. Hall: No, sir.

Not the trial judge and if there was a different judge.

The judge is not hearing the case.

Chief Justice Warren E. Burger: What was to prevent you from representing to the trial judge with or without an invitation from the trial judge exactly what you have responded now without naming the names, that stating precisely what you have stated to us?

Mr. Harold L. Hall: I feel that the Court would remember that and some of its ruling there might be presence to want or -- may where he would be wanting which one was the one who stayed at top of the stairs.

Chief Justice Warren E. Burger: Somebody will remember it now if you get a new trial if you get what you are after?

Mr. Harold L. Hall: But we have still not mentioned any names.

I was never asked whether the trial judge or the --

Chief Justice Warren E. Burger: My question to you now was ? why could not you make that representation to the judge, but declined to identify which person was at the head of the stairs and so forth, just as you have not disclosed that to us?

Am I arguing to prevent you from doing that?

Mr. Harold L. Hall: No, sir.

Justice Thurgood Marshall: But Mr. Hall the record does show that the first time any judicial officer asked you, you gave it?

Mr. Harold L. Hall: Yes, sir.

Justice Thurgood Marshall: That was right here.

Mr. Harold L. Hall: Yes, sir.

Justice Thurgood Marshall: And if you have been asked before you have to give?

Mr. Harold L. Hall: As he had posed (Inaudible) at this morning.

Chief Justice Warren E. Burger: It is not the role of defense counsel to be bashful in presenting these points in either this Court or a trial Court, do you think?

Mr. Harold L. Hall: No, sir.

Justice John Paul Stevens: Mr. Hall, you did, if I understand the record correctly, you did represent it to the trial judge, you did not just ask for a separate lawyer.

You did represent to them that you had conversed with the three clients and in your professional judgment there was a conflict of interest?

Mr. Harold L. Hall: Yes sir.

Justice John Paul Stevens: You made that representation as a member of the Bar?

Mr. Harold L. Hall: Yes sir.

Justice John Paul Stevens: So your rule that you asked for is one that would only apply where the lawyer puts his professional reputation on the line in that way?

Mr. Harold L. Hall: Yes sir.

Chief Justice Warren E. Burger: You have referred to the American Bar standards on this subject.

In those standards is there not also a standard that if one public defender in a public defender office is presented with the problem that you had that then none of the members of that same staff should be on the case?

Mr. Harold L. Hall: That is right.

Chief Justice Warren E. Burger: Is that not true in your standards?

Mr. Harold L. Hall: Yes sir.

Chief Justice Warren E. Burger: In other words, for those purposes the public defender staff is treated just as though it were a law firm?

Mr. Harold L. Hall: One firm, yes sir.

Chief Justice Warren E. Burger: Very well, thank you Mr. Hall.

Mr. Harold L. Hall: Thank you sir.

Chief Justice Warren E. Burger: Mr. Purvis.

Argument of Joseph H. Purvis

Mr. Joseph H. Purvis: Mr. Chief Justice and May it please the Court.

The State of Arkansas here would submit that there are really, but two issues.

The first is whether in fact a conflict of interest did exist here, and the second or broader issue is if the issue of conflict arises who bears the responsibility for making that decision.

The Glasser decision of this Court in 1942 merely stated that ineffective assistance of counsel was given where an attorney was representing conflicting interest and the majority of jurisdictions in this country have held that it is not an imaginary conflict that is spoken off, but that it must be shown that there is in fact some real conflict, something more than a possibility of conflict.

The State of Arkansas submits that the defense counsel here submitted a petition for separate counsel that stated merely that the ?possibility? of conflict existed.

Prior to trial, the trial Court held a hearing on this motion in an effort to ascertain what if any conflict existed?

We are not blessed in the record with a transcript of that hearing.

However, the Court did find at the conclusion that there was no conflict.

The --

Justice Thurgood Marshall: Where is that told that there was no conflict where the judge said there was no conflict?

Mr. Joseph H. Purvis: The judge denied his motion for --

Justice Thurgood Marshall: But where in the record is it that the judge said there is no conflict?

Mr. Joseph H. Purvis: I do not know that Mr. Justice Marshall, I do not know that the Court elucidated those exact words, but the trial court continually stood ready to hear evidence of some conflict, and there was none that really existed here.

The defendants were not precluded any defense.

They all alleged alibi defenses that were certainly not inconsistent.

They testified to this effect.

There is no indicia that the defense counsel could not have gone forward and made such a proffer.

Now, the defense counsel has set forth some very nice standards dealing with confidentiality and lawyer confidences, but it seems to me that he overlooks the fact that number one - this case in particular involved no conflict, that he very easily could have outlined to the trial court, the general nature of the conflict and did not have to divulge confidential information to the court in order to show that a conflict existed, but apparently the defense counsel never made that impression or conveyed that to the court and the state would certainly submit that there was no conflict that existed here.

Counsel made a great deal of the fact that he was unable to cross-examine his witnesses.

Indeed there was nothing to be gained by the cross examination of it.

Justice John Paul Stevens: Mr. Purvis, let me ask you question about the practical preparation for the trial.

Supposing that one of the men was at the top of the stairs.

Mr. Joseph H. Purvis: Yes, sir.

Justice John Paul Stevens: And the lawyer made the judgment that it would be better for that particular defendant to tell the whole truth; to explain that he was there, he was at the top of the stairs and the other two men were at the bottom of the stairs and did the other things.

Could the lawyer in good and consistently with his obligation to the other two people, advise that defendant to take that posture at the trial?

Mr. Joseph H. Purvis: I think had defense counsel done so, sir, he certainly would have made a case of conflict and he could have merely outlined the --

Justice John Paul Stevens: Could he have done that -- could he have done that while he was representing all three?

Could he have said, ?I advise you,? who was the man at the top of the stairs, ?I think you ought to tell the whole truth??

Mr. Joseph H. Purvis: I think he should have gone to the Court when he perceived this conflict.

That is the nature of the State's position that asking for an early hearing and explaining this without dealing into specific --

Justice John Paul Stevens: But, in order to go to the Court, would he had not had found it necessary to explain to the Court that these men were really guilty.

Would that not have been necessary in order to tell the Court about the problem?

Mr. Joseph H. Purvis: No sir, I think he could have gone to the Court and explained Your Honor, ?I have one of my three clients who wishes to testify and his defense is or the essence of his testimony will be totally antagonistic.

It will be exculpatory and it will cast the shadow of doubt and try to thrust the guilt on the other two.

I do not think he is divorced or has conceded that any or all are guilty.

He is merely spoken of what his counsel will testify or what his client will testify.

I think then if the Court knows this and I think certainly here had the trial Court known this, it would have granted the motion for separate counsel.

Justice Thurgood Marshall: This would be before the trial.

Mr. Joseph H. Purvis: Yes, sir.

Justice Thurgood Marshall: Well, what would have happened if that developed in the middle of the trial?

Mr. Joseph H. Purvis: I think if it develops in the middle of the trial and the State does not refute the position if at any time during the trial it can be shown that a conflict actually exists then I think the trial court has the duty to declare a mistrial if it is in trial --

Justice Thurgood Marshall: And then what do you do with double jeopardy?

Mr. Joseph H. Purvis: Arguably, due to --

Justice Thurgood Marshall: Yeah, it will be arguably?

Mr. Joseph H. Purvis: Yes, sir.

It is a very grave danger here, but I think the Court would have no duty or no choice, but to declare a mistrial.

Justice Byron R. White: But do you contend that the motion made at the opening of the trial which was a renewed motion was untimely?

Mr. Joseph H. Purvis: No, sir.

I simply think that the --

Justice Byron R. White: And you think the Court correctly said that the inability to cross examine a codefendant who wants to testify is an insufficient reason for a separate counsel?

Mr. Joseph H. Purvis: Mr. Justice White, there was no indication, and the court had no indication, the Court was not advised as to even the real nature of the potential conflict here.

Justice Byron R. White: Alright, so your answer is no.

I mean the court was told that the defendants were going to testify.

Mr. Joseph H. Purvis: He was told that there was a possibility yes, sir.

Justice Byron R. White: Possibility or they got up and said they were going to testify it.

Mr. Joseph H. Purvis: Well, that was at the closure of the State's case, but the court had no information --

Justice Byron R. White: Yes, that is right.

That is when it was, but you do not say that that motion was untimely, do you?

Mr. Joseph H. Purvis: Not necessary --

Justice Byron R. White: The Court did not say it was that he just denied it.

Mr. Joseph H. Purvis: That is right, because the court --

Justice Byron R. White: And he said that apparently the inability to cross-examine is insufficient reason --

Mr. Joseph H. Purvis: Because the court had no information before that there would be anything that would be antagonistic or indicative of a conflict at that time.

Justice Byron R. White: No, he did say -- the court said -- that is alright that they testified.

There is no conflict of interest is what the court ruled.

Mr. Joseph H. Purvis: Based on the information that the court had at the time which was minuscule merely that there was a possibility of a conflict of interest.

Chief Justice Warren E. Burger: You do not think it would be an appropriate rule that a court would be obliged to accept the representation of a member of the bar if he tendered that as a member of the bar and as an officer of the court, that is not enough?

Mr. Joseph H. Purvis: I think Mr. Chief Justice that the trial court bears a very grave responsibility and any such decision such as this needs to be made by an independent authority.

The State contends that the burden for bringing up conflict of interests certainly lies with the members of the bar, but it is the ultimate responsibility of the trial judge, the impartial independent trial judge to receive the information outlining the nature of the conflict and then to make a decision as to whether a conflict does in fact exist, if one does exist then I think the duty is to appoint separate counsel.

Justice Thurgood Marshall: But there is no question that he did deny the right to cross-examine the other defendants?

Mr. Joseph H. Purvis: Yes, sir, but there was nothing.

Unknown Speaker: But he did.

Mr. Joseph H. Purvis: He did do that, but there was nothing to show that there was anything antagonistic and in fact their alibi defenses were entirely compatible.

Justice Thurgood Marshall: I cannot reach at a conclusion as properly as you can because I do not know what information the defense counsel had and I submit, I do not think you do either, you do not know what he wanted to cross-examine all because he was never allowed to?

Mr. Joseph H. Purvis: No, sir, but this goes -- the State would contend again --

Justice Thurgood Marshall: Do you know what he wanted to cross-examine on?

Chief Justice Warren E. Burger: But we do now, do we not, after his representations?

Mr. Joseph H. Purvis: I think we do now Mr. Justice Marshall, and I think that had defense counsel made the disclosure of this nature at the motion hearing, the court would have known.

Justice Thurgood Marshall: And if he had been asked, he would have made it?

Mr. Joseph H. Purvis: Asked?

Justice Thurgood Marshall: The first time any judge asked him the reasons that Mr. Justice Rehnquist and he admitted he gave him the answer until he stood here and said any other judge would ask and he would oppose counsel.

Mr. Joseph H. Purvis: Yes sir, but we unfortunately are not blessed with the record of them hearing on the motion.

Justice Thurgood Marshall: But you are blessed with the record which says you cannot cross-exam?

Mr. Joseph H. Purvis: Yes, sir but --

Justice Thurgood Marshall: We are blessed with that.

Mr. Joseph H. Purvis: Yes, sir and ? but we would say that there is nothing in there to indicate that the judge or anyone knew of any reason why our cross-examination would --

Justice Thurgood Marshall: He was not interested.

The judge says well, what did he say now, as I remember the judge said you know you cannot go, that is all he said.

The judge did not give any reason to it, am I right?

Mr. Joseph H. Purvis: No, sir.

Justice Thurgood Marshall: The judge said you cannot cross-examine your own witness?

Chief Justice Warren E. Burger: When he said that articulating the traditional rule about examining --

Mr. Joseph H. Purvis: I think that is what he was --

Chief Justice Warren E. Burger: His own witness --

Mr. Joseph H. Purvis: Referring to Your Honor because Arkansas had not adopted the uniform rules of evidence until July 01, 1976 which was approximately ten months after this trial.

Chief Justice Warren E. Burger: Does Arkansas and the state courts permit examination of a witness even when the witness has been called by counsel, if there is some representation of his being or her being a hostile witness?

Mr. Joseph H. Purvis: Yes, sir.

Chief Justice Warren E. Burger: It is the usual rule.

Mr. Joseph H. Purvis: Yes, sir.

Justice Thurgood Marshall: Well, did that apply here?

Mr. Joseph H. Purvis: There was --

Justice Thurgood Marshall: He says you cannot cross-examine.

Mr. Joseph H. Purvis: There was no --

Justice Thurgood Marshall: So he denied in the right, did he not?

Mr. Joseph H. Purvis: Yes, sir at the time of this trial, Arkansas was operating under the old traditional rules of evidence that unless you could show or have the court declare your witness to be a hostile witness, you were not entitled to cross-examine your own witness.

The court, it is our position, stood ready at all times to receive sufficient information to let it be able to declare him a hostile witness and to show that there was a conflict.

Justice Potter Stewart: Your brother's point is that he was charged with representing that defendant, that witness.

Mr. Joseph H. Purvis: Yes.

Justice Potter Stewart: And the last thing it would have been wholly inconsistent with his representation of that defendant for him to set out to cross examine him and show that he was a lier?

Mr. Joseph H. Purvis: Yes sir.

If that is what --

Justice Potter Stewart: So he was just putting in his claim as an impossible dilemma?

Mr. Joseph H. Purvis: There was --

Justice Potter Stewart: He was representing that defendant, he just was -- it would have been wholly inconsistent with his defense of that man to cross examine him and show that his testimony was untrue, would it not?

Mr. Joseph H. Purvis: Yes sir, but apparently --

Justice Potter Stewart: That was a dilemma that he points out to us.

Mr. Joseph H. Purvis: Apparently, we are not given and do not know and certainly cannot tell from the record, what line of defense, the defense would have taken.

Had there been separate counsel or had they even been allowed cross-examination?

There was nothing to show any --

Justice Potter Stewart: But his point is that not that it was not allowed, but that forced as he was to represent all three people, he could not conscientiously cross-examine any single one of them which would have been damaging to his own client?

Mr. Joseph H. Purvis: Yes sir, but I think in order to do that you have to make a presumption that there is a conflict which would necessitate or give benefit from the cross-examination and there was nothing in the record to note that such existed at that time.

Chief Justice Warren E. Burger: Does Arkansas traditionally follow the rule followed in many places that if the client testifies falsely then counsel, even his own counsel was not pursue that witness in anyway, is that accepted in Arkansas?

Mr. Joseph H. Purvis: I cannot answer that Your Honor.

I do not ? I believe that it is.

Chief Justice Warren E. Burger: But you do recognize that at that stage whatever flaws there may have been in the conduct of the defense counsel in not pressing the matter in the first instance, when he got into trial that he was presented with an extremely difficult set of alternatives, was he not?

Mr. Joseph H. Purvis: Yes sir.

Chief Justice Warren E. Burger: If he was going to try to help the man who was the lookout man at the head of the stairs and presumably that is the only man he was primarily concerned with.

Mr. Joseph H. Purvis: Of course then to under the Arkansas law the mere fact that he was at the head of the stairs instead of the actual rapist, would have had no baring on his guilt of the two crimes or the two charges actually three rapes because he was just as guilty as those who were --

Chief Justice Warren E. Burger: Well, that may be true as a matter of law, but a jury might have taken a different view for example and found that the lookout man guilty of lesser charges than finding assessed with the others, is that not so?

Mr. Joseph H. Purvis: That is true Your Honor, but here again we have the -- there is no indication that any of the defendants in this case had any or gave any inkling of ever choosing to confess and turn state's evidence or admit to any facet of this crime and the state would contend that were there some indicia in the record that one wish to do so.

Chief Justice Warren E. Burger: There are again when these three men had one common counsel, that counsel, the public defender was in pretty difficult position to go and negotiate with the prosecutor for a guilty plea on a lesser included offense for the man at the head of the stairs, is that not so?

Mr. Joseph H. Purvis: Yes sir, but there have been decisions from the various circuit courts that hold merely because the evidence is stronger as to one or merely because the defense counsel is precluded one particular line of questioning or defense that, that does not necessarily give rise to a conflict.

Chief Justice Warren E. Burger: Would you agree that the Arkansas Supreme Court did not explore these questions as extensively as they have been explored here this morning?

Mr. Joseph H. Purvis: Yes sir, and I think simply because the Arkansas Court did not have the information before it that this Court has.

Chief Justice Warren E. Burger: And did not have oral argument, is it not?

Mr. Joseph H. Purvis: No, sir they did not.

In Arkansas oral argument is not a matter of course.

It generally must be sought by the party who is the appellant or one of the two parties, they equally have the right to do so, but --

Unknown Speaker: Mr. Attorney General, I have understood you to say that none of these defendants confessed, but I thought Campbell did confess?

Mr. Joseph H. Purvis: No, sir I did not say that none confessed, but Mr. Campbell vehemently denied making the statement, committing the crime or ever having even been in the restaurant.

Unknown Speaker: But his confession was introduced in evidence?

Mr. Joseph H. Purvis: His oral statement, yes sir.

Unknown Speaker: Yes, and in that statement although he implicated the codefendants, their names were stricken, that is from the confession as introduced?

Mr. Joseph H. Purvis: That is true sir.

And then he took the stand and vehemently denied as he had done at the Denno hearing in previous room.

Chief Justice Warren E. Burger: Should he receive -- should it occur that he would receive a new trial now, I suppose some of them may have opened themselves to charges of perjury in their original trial?

Mr. Joseph H. Purvis: Presumably so sir.

Yes sir.

Chief Justice Warren E. Burger: At least it is a possibility?

Mr. Joseph H. Purvis: It is a possibility, but the charge of perjury is one that is rarely applied, or rarely tried in the State of Arkansas at any rate that not meaning to cast any doubt on the jury system or the system of the people in the State of Arkansas, but in the matter of such as this I think certainly they would be, if this court reversed I think certainly they would be retried for their crimes, but the state would once again contend that there really was no reversible error here because there was no conflict and if counsel might speak further as to the per se rule advocated by the Amicus and apparently by the defense counsel, state would reiterate that it whole heartedly opposes such because such a per se rule is premised on the idea or on the belief that there is conflict every time multiple defendants are represented by a sole counsel.

Justice Byron R. White: Well, that is not what the contention is as far as I can say.

He does not ask that there is any flat rule against multiple representation?

Mr. Joseph H. Purvis: I think in one of the Amicus Briefs --

Justice Byron R. White: Well, you said -- you said that, you attributed the same here to your colleague here.

Mr. Joseph H. Purvis: Yes sir.

Justice Byron R. White: I did not understand his submission in that way.

His submission is that, that if the attorney makes a representation that in his view and his professional judgment there is a conflict then there should be separate representation, that is not a per se rule.

Mr. Joseph H. Purvis: Well, the State would oppose that rule as well Your Honor, because I think in addition to the other summary, it certainly places in the hands solely, in other words it divest from the trial court the making of a constitutional decision and it removes the trial court or divests it from the supervising protectionary power that it exercises as to the defendants --

Justice Byron R. White: Do you think that trial judge should be entitled to require a counsel in supporting his judgment to reveal confidential information imparted to him by his client?

Mr. Joseph H. Purvis: Mr. Justice White I do not think that such confidence revelations are necessary in what a very, very few minuscule questions.

Justice Byron R. White: How about answering my question?

Mr. Joseph H. Purvis: And yes sir, I think if necessary a counsel strongly believes that there is a conflict and it would necessitate I think Disciplinary Rule 1-104 (C) (2), believe it is would allow for that for the revelation of confidences when so ordered by the court.

Justice Thurgood Marshall: Mr. Attorney General what is so wrong with an individual counsel?

Mr. Joseph H. Purvis: Oh! I see nothing that is wrong with it.

Justice Thurgood Marshall: But the way you keep arguing, you keep resisting it, it seems like it is some (Inaudible).

Mr. Joseph H. Purvis: No, sir I do not.

In fact I think certainly I know if I have --

Justice Thurgood Marshall: It is good.

Mr. Joseph H. Purvis: It is good, but by the same token I do not think that you have done anything wrong.

I do not think the constitution has been violated by the most representation until you can show some actual conflict and I would simply close by saying that the state's position as to what should be the rule as to the determination of conflict is outlined in the conclusionary part of our brief.